Kekec v Turbo Exhaust Centre Pty Ltd - [2019] NSWWCCPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Kekec v Turbo Exhaust Centre Pty Ltd [2019] NSWWCCPD 51
APPELLANT:	Selim Kekec
RESPONDENT:	Turbo Exhaust Centre Pty Ltd
INSURER:	Employers Mutual Ltd – Acting as the agent for icare workers insurance
FILE NUMBER:	A1-5008/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	5 February 2019
DATE OF APPEAL DECISION:	22 October 2019
SUBJECT MATTER OF DECISION:	Alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308, ‘judicial notice’ in the Commission, ‘worker’ issues and the totality of the relationship – application of Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 and Pitcher v Langford (1991) 23 NSWLR 142
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	28 August 2019
REPRESENTATION:	Counsel:
Mr B Gross QC and Mr D Epstein (Appellant)
Mr D Saul (Respondent)

Solicitors:
Sayan & Associates (Appellant)
Bartier Perry (Respondent)
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination dated 5 February 2019 is confirmed.

INTRODUCTION

Selim Kekec (the appellant) and Nihat Kabaran (the “owner/managing director” of Turbo Exhaust Centre Pty Ltd [the respondent][1]) executed a document described as an “Employment Contract” dated 11 August 2014 (employment contract).[2] The appellant and the respondent were the nominated parties. On 15 August 2014 the Department of Immigration and Border Protection (the Department) acknowledged an application[3] by the respondent, in which the appellant was described, in attached documentation, as the “Visa Applicant”. The application was for a “subclass 457 visa”, the respondent was the “sponsoring employer”, the appellant was described as currently having his “own company in China set up 28 May 2009 operating in importing and exporting”. The appellant’s annual earnings in the employment contract were $A98,400,[4] and his job title and occupation was “Importer and Exporter”. On 30 September 2014 the Department advised the respondent that its nomination of the appellant had been approved,[5] and gave notice of the grant of a “Temporary Work (Skilled) (subclass 457) visa” to the appellant, describing the respondent as “Sponsor”.[6]
[1] Statement of Nihat Kabaran dated 31 July 2015, [9], Reply, p 259.
[2] Application to Resolve a Dispute (ARD), pp 343–350.
[3] ARD, pp 358–360.
[4] ARD, pp 363–373.
[5] ARD, pp 420–421.
[6] ARD, pp 425–430.
On 20 June 2015 at around 11.30 pm the appellant was present in premises occupied by the respondent at Smithfield, when an explosion occurred in which the appellant suffered serious injuries.
Employers Mutual Ltd (Employers Mutual) commissioned a factual investigation, which was dated 10 July 2015. The appellant made a claim for workers compensation on the respondent, dated 1 September 2015. He described himself as “working under ‘457 visa’”, and as having commenced employment on 30 September 2014. He gave his usual occupation as “LHD electronics engineer”.[7] The insurer denied liability in a s 74 notice dated 1 October 2015. It denied that the appellant was a ‘worker’ or a ‘deemed worker’, it denied that the injuries occurred in circumstances arising out of or in the course of employment with the respondent, and denied that employment was a ‘substantial contributing factor’ to injury (section 9A of the Workers Compensation Act 1987 [the 1987 Act]).[8] These issues were confirmed in a second notice dated 30 October 2015, on an application by the appellant for a review of the initial decision.[9]
[7] ARD, pp 158–161.
[8] Reply, pp 276–279.
[9] ARD, pp 334–337.
The appellant instituted proceedings number 3276/18, which were discontinued on 12 September 2018. The current proceedings were registered on 25 September 2018. This appeal is brought against an arbitral decision dated 5 February 2019, in which an award was entered in favour of the respondent.
It is a matter in which there is little common ground between the parties.

THE ARBITRAL PROCEEDINGS AND DECISION

The matter was listed for arbitration hearing on 29 November 2018. Mr Gross QC and Mr Epstein appeared for the appellant and Mr Saul appeared for the respondent. It was the initial intention that the appellant and Mr Kabaran would both be cross-examined.[10] The appellant by that time was resident in Thailand, and arrangements were made for him to attend the hearing by video link (which occurred[11]). When the arbitration commenced the parties announced an agreement that neither sought to cross-examine, and the matter could be determined “on the papers”, subject to there being “no restriction from either party making submissions, far-ranging, in respect of credit and there will be no point or allegation of procedural fairness taken”.[12] Mr Saul confirmed the issues consistent with the s 74 notices, and added that “capacity” was also in issue “now that he [the appellant] is no longer in the jurisdiction”.[13]
[10] Direction dated 23 October 2018.
[11] Kekec v Turbo Exhaust Centre Pty Ltd [2019] NSWWCC 56, Transcript of arbitration hearing on 29 November 2018 (T1), 4.12– 34.
[12] T1 3.2–23.
[13] T1 3.28–4.5.
The appellant’s counsel handed up written submissions, which Mr Gross QC and Mr Epstein spoke to. Mr Saul made oral submissions. Mr Gross QC made submissions in reply. A legible copy of the ambulance report became available, and Mr Saul addressed on that, as did Mr Gross QC in reply on that topic. The Arbitrator reserved his decision. The Commission subsequently issued a Direction to the parties dated 19 December 2018, drawing their attention to passages of the clinical notes produced by the Royal North Shore Hospital (RNSH)[14]. The parties were invited to make written submissions dealing with that evidence. Written submissions responding to this Direction were lodged, dated 22 January 2019 (on the appellant’s behalf) and 30 January 2019 (on the respondent’s behalf).
[14] Appearing in Reply, pp 79–80, 161–162, 168.
A Certificate of Determination was issued on 5 February 2019, accompanied by 29 pages of reasons.[15]
[15] Kekec v Turbo Exhaust Centre Pty Ltd [2019] NSWWCC 56 (reasons).
The Arbitrator set out the procedural background and issues in the matter.[16] The Arbitrator summarised the appellant’s case. He set out the appellant’s evidence, contained in five statements, in some detail.[17] He summarised the contents of records produced by the Ambulance Service, NSW Police and Fire & Rescue NSW.[18] He referred to some pertinent provisions in the employment contract.[19] He summarised lay statements from Kadir Akca, Mehmet Gencturk, Selim Yilmaz, Ahmet Canbolat, Mark Kraljevic and Shenglan Liu.[20] He briefly summarised the appellant’s medical evidence.[21] He summarised the appellant’s submissions.[22]
[16] Reasons, [1]–[12].
[17] Reasons, [14]–[47].
[18] Reasons, [48]–[52].
[19] Reasons, [53]–[56].
[20] Reasons, [57]–[69].
[21] Reasons, [70]–[76].
[22] Reasons, [77]–[84].
The Arbitrator then dealt with the case presented by the respondent. He summarised the contents of Mr Kabaran’s five statements,[23] material produced by SafeWork NSW and NSW Police,[24] and a statement of Nguyet Kabaran (the wife of the respondent’s director).[25] He summarised the respondent’s submissions.[26]
[23] Reasons, [85]–[122].
[24] Reasons, [123]–[126].
[25] Reasons, [127]–[129].
[26] Reasons, [130]–[138].
The Arbitrator referred to material produced by the RNSH, particularly that the subject of the Direction dated 19 December 2018, and the parties’ submissions in compliance with that Direction.[27]
[27] Reasons, [139]–[150].
The Arbitrator referred to the issue of ‘worker’ (the appellant did not ultimately rely on an allegation of ‘deemed worker’[28]). The Arbitrator referred to Stevens v Brodribb Sawmilling Company Pty Ltd[29] and Connelly v Wells[30]. He described the existence of the employment contract as “a significant factor in the indicia”, but “not the sole determining factor”. He said that whether the appellant had entered into a contract of service depended on “a consideration of all the indicia”.[31]
[28] T1 6.18–20.
[29] [1986] HCA 1; 160 CLR 16 (Stevens).
[30] (1994) 10 NSWCCR 396 (Connelly).
[31] Reasons, [151]–[158].
The Arbitrator described the difficulty in determining the ‘worker’ issue as being:
“…compounded by the radical change in the [appellant’s] descriptions of his engagement with the respondent that are recorded by the police, SafeWork NSW, a social worker at Royal North Shore Hospital and Employers Mutual, to that of his statements some two years later”.[32]
[32] Reasons, [159].
The Arbitrator said that the evidence that came into existence within weeks of 20 June 2015, including the appellant’s own statements, pointed “strongly to the [appellant] running his own LED sign business and not working under a contract of service for the respondent”, notwithstanding the employment contract which allowed his entry into Australia. He described the appellant’s statement dated 24 July 2015 as “detailed, measured and plausible”. The arrangement described in the statement was one where the appellant had “some part of the premises to operate his own business”. The LED signs were installed by the appellant and Mr Kabaran, as this was “a two-man job”. The Arbitrator said this evidence was consistent with statements by Messrs Akca, Gencturk and Canbolat.[33]
[33] Reasons, [160]–[162].
The Arbitrator said the statement of the appellant recorded by an investigator with SafeWork NSW on 6 August 2015 was also consistent with the appellant running his own business. It said he had a small office at the premises to make LED signs, that such work took up all the appellant’s time, and he did not do any “car things”. It said Mr Kabaran helped with the installation of the signs.[34]
[34] Reasons, [163].
The Arbitrator referred to the statement from the appellant recorded by the police on 17 August 2015. It said one section of the Smithfield premises contained the car exhaust centre, where Mr Kabaran worked, the rear contained the area where the appellant manufactured his “neon signs”. The Arbitrator described this as consistent with the appellant “operating a business independently of the respondent’s business”.[35] The Arbitrator referred to the appellant’s statement to Employers Mutual dated 13 October 2015. He said the working arrangements described in this were the same arrangements, although there was, added to this account, an assertion that the appellant was employed by Mr Kabaran or the respondent.[36]
[35] Reasons, [164].
[36] Reasons, [165].
The Arbitrator noted the clinical notes of a social worker at Royal North Shore Hospital, particularly on 7 July 2015. He said it was difficult to accept that, within a matter of days of coming to grips with his situation, the appellant had concocted a story at the direction of Mr Kabaran, to say that he was not employed by the respondent but was running his own business, and he was not to identify the cause of the explosion. He said these notes were “measured and are consistent” with details the appellant provided to SafeWork NSW and Employers Mutual several weeks later. The Arbitrator said there was no mention in the notes that the appellant expected sick pay as an employee, or that the respondent carried any responsibility for his injuries. The Arbitrator said of these notes:
“Those notes speak plainly of a man who had made some short visits to Australia to investigate business viability, had obtained a visa to work in Australia, and was in the process of pursuing a business”.[37]
[37] Reasons, [169]–[170].
The Arbitrator said there was nothing in the notes to suggest that there were communication difficulties due to the lack of an interpreter. The notes indicated an interpreter had been present, and the appellant said he was comfortable talking in English providing speech was slowed.[38]
[38] Reasons, [171].
The Arbitrator said it was difficult to identify evidence that Mr Kabaran induced the appellant to provide a false story to SafeWork NSW, NSW Police and Employers Mutual. There was no indication that Employers Mutual intended to deny indemnity to the respondent. The respondent’s then lawyers, Rapid Lawyers, advised Employers Mutual on 1 July 2015 that the appellant’s employment with the respondent had not yet commenced. The Arbitrator described this as consistent with statements made by the appellant to Employers Mutual and SafeWork NSW, on 24 July 2015 and 6 August 2015 respectively. Reference was made to Mr Kabaran’s co-operation with the Police and SafeWork NSW in the investigation of the accident. The Arbitrator said there was “no adequate reason for Mr Kabaran to threaten or compel the appellant not to tell the truth and concoct a false version of events to the investigating authorities and the workers compensation insurer”. [39]
[39] Reasons, [173]–[177].
The Arbitrator referred to the statements of Messrs Gencturk, Yilmaz and Akca, that Mr Kabaran was concerned the appellant was not on the payroll. He described the implication of this as being that the appellant would not be covered for workers compensation. Mr Kabaran denied saying this, as he did not regard the appellant as an employee of the respondent in any event.[40]
[40] Reasons, [178].
The Arbitrator then dealt with the employment contract. Mr Kabaran’s evidence in his various statements was that the appellant did no work for the exhaust business, working “entirely in his own LED sign business”. The Arbitrator said this was consistent with Mr Kabaran’s belief that the appellant was not an employee of the respondent, and was not on the payroll. The Arbitrator referred also to a statement by Mr Gencturk, that Mr Kabaran said he was concerned insurance would not cover him and he would lose everything. The Arbitrator noted Mr Kabaran denied this. The Arbitrator said that, in any event, it would not be unusual for a person in Mr Kabaran’s situation to be concerned regarding whether insurance would protect them. If it had been said, it would not provide a reason for the appellant to provide a false version of events to Safework NSW and Employers Mutual.[41]
[41] Reasons, [179]–[180].
The Arbitrator referred to a submission by the appellant that five people visited the appellant in Royal North Shore Hospital on 30 June 2015 (referred to in clinical notes) and that this was consistent with Mr Kabaran visiting and telling the appellant not to say anything about the transfer of gas between bottles. The Arbitrator described this as “pure speculation”. Additionally, the clinical notes around that time described the appellant as having “substantial difficulty with cognition, concentration and communication”. On 30 June 2015 the appellant was still in ICU (intensive care), and would not have had sufficient cognition to understand a direction to concoct a version in the way alleged by the appellant.[42]
[42] Reasons, [181]–[184].
The Arbitrator said:
“185. I prefer the detailed, measured and consistent explanations provided by the [appellant] to the social worker at Royal North Shore Hospital, to an investigator for SafeWork NSW, to an investigator on behalf of Employers Mutual, and to the police, in making a finding that the [appellant] was not a worker who had entered into or worked under a contract of service with the respondent. I am satisfied that those records provide an accurate description of the [appellant’s] circumstances as at 20 June 2015, namely that the [appellant] was operating a business in part of the premises provided to him by Mr Kabaran at … Smithfield.
186. It follows that I do not accept the evidence of the [appellant] regarding the work he claims he was required to do for the respondent which he then makes in his statements dated 22 June 2017, 6 August 2018, and 12 September 2018. The [appellant] sustained serious injuries in the explosion and the [appellant] is seeking some compensation for those injuries, but that is not achieved by contradicting his own statements made to people who were trying to help him or who had a statutory responsibility to determine a cause of, or responsibility for, the explosion.
187. I also consider there is a lack of genuine evidence to persuade me that the [appellant] was induced and directed to tell a false story to a number of people regarding his circumstances and the cause of the explosion.”
The Arbitrator accepted there were inconsistencies in Mr Kabaran’s statements. In some statements Mr Kabaran was adamant there was a clear separation between the appellant’s LED sign business and the exhaust business. In his later statement dated 17 August 2018 Mr Kabaran conceded helping the appellant on occasions. This was reasonable, the two were friendly, and there were LED signs that took two people to properly install. The Arbitrator said that:
“…occasional assistance provided by Mr Kabaran falls a long way short of proof that the installation of LED signs had become part of the respondent’s business and that the [appellant] was under the control and direction of Mr Kabaran or the respondent in undertaking that work.”[43]
[43] Reasons, [188]–[190].
The Arbitrator referred to the invoices relied on by the appellant. Two of these, dated 20 August 2014 and 22 August 2014, were organised by the appellant and paid for by Mr Kabaran’s business. These both pre-dated the appellant’s move to Australia and were, the Arbitrator said, “consistent with Mr Kabaran’s evidence that the [appellant] helped Mr Kabaran in importing those parts for the respondent’s business”. The Arbitrator reasoned that the appellant received notification of the approval of his 457 visa on 30 September 2014, and married Ms Liu in China on 22 October 2014, so the appellant did not move to Australia “until the end of October 2014”. The Arbitrator said the appellant had failed to provide evidence of invoices raised between October 2014 and 20 June 2015. He had “not produced his bank account in China where he claims monies from the respondent were sent for him to pay the invoices that were raised in the import/export work that he says he was doing for the respondent”. The Arbitrator described the absence of records of the bank account from China, particulars of the other invoices from October 2014 to 20 June 2015, and particulars of the items he claimed to have imported at the respondent’s direction over that period, as further reasons for his failure to be satisfied the appellant worked under a contract of service with the respondent.[44] The Arbitrator concluded on this issue:
“I am therefore not convinced that the [appellant] was working under a contract of service for the respondent in regard to any import/export work notwithstanding that there exists a contract of employment which states that the respondent employs the [appellant] as an ‘Importer/Exporter’.”[45]
[44] Reasons, [193]–[195].
[45] Reasons, [196].
The Arbitrator rejected the proposition that the appellant was assisted by the correspondence from Lloyds Shipping Australia Pty Ltd dated 3 August 2018.[46] It referred to customs clearance procedures on behalf of the respondent dating back to 17 November 2014. The Arbitrator described this date as consistent with the importation of goods arranged before the appellant left China to come to Australia. The next date referred to in the letter was 18 December 2015, six months after the accident, consistent with the appellant’s statement that from “the end of 2015 he was sourcing supplies in China and importing”. The Arbitrator said this material could not satisfy him the appellant was “undertaking importing work at the direction and control of the respondent”.[47]
[46] ARD, p 437.
[47] Reasons, [197]–[198].

The Arbitrator referred to the appellant’s statement dated 22 June 2017, in which the appellant stated that while he was in hospital Mr Kabaran told him what he should say. He was told not to mention transferring gas bottles, that Mr Kabaran knew nothing of the gas vapour unit, and that the explosion occurred when the appellant went to the toilet and turned on the light. He also said that, before the SafeWork NSW inspector came to speak to him while he was convalescing at Mr Kabaran’s Mt Pritchard home, Mr Kabaran told him what to say, although the statement does not describe what this was. The Arbitrator said that the evidence of being told to state a false story related to the circumstances of the explosion, not to details about any employment. The Arbitrator said this added to his preference for what was recorded by the social worker at Royal North Shore Hospital, the investigator from SafeWork NSW, the investigator from Employers Mutual and the police.[48]
[48] Reasons, [199]–[200].
The Arbitrator referred to a statement by Ms Liu, the appellant’s wife. She described the appellant’s “main job just imported” (sic), said Mr Kabaran assisted the appellant with installation of LED signs, and also said the appellant did “exhaust pipe sanding and other jobs for Mr Kabaran”. The Arbitrator said of the “sanding and other jobs” that there was “sparse information” provided as to when the appellant did such work, and it did not satisfy him that the appellant was working under a contract of service with the respondent. The Arbitrator said there were “marked differences in the evidence between the [appellant] and Mr Kabaran regarding what the [appellant] did at the direction and control of the respondent”. The Arbitrator referred to Fox v Percy,[49] saying he had endeavored to determine the dispute “on the basis of contemporary materials, objectively established facts and the apparent logic of events”.[50]
[49] [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (Fox v Percy).
[50] Fox v Percy, [31].
The Arbitrator referred to the mode of remuneration (an indicium referred to by Mason J in Stevens) as weighing against a finding of ‘worker’. Notwithstanding the reference to a salary of $8,200 per month in the employment contract, Mr Kabaran said he had not paid any wages to the appellant prior to 20 June 2015. The appellant stated that $3,200 was paid into his account between 31 December 2014 and 4 March 2015. There was no regular payment of salary consistent with the employment contract, and there was no certainty that the $3,200 could be regarded as wages or salary referable to any particular work undertaken at the direction of the respondent. The Arbitrator said the non-payment of the sum of $8,200 per month referred to in the employment contract, and the failure of the appellant to demand such payment, “is consistent with the [appellant] operating a business and not regarding himself as an employee”. The Arbitrator rejected the appellant’s evidence that he did not know how people who provided their labour in Australia were remunerated.[51]
[51] Reasons, [205]–[210].
The Arbitrator rejected a submission on the appellant’s part, that an entry in the Ambulance Service Retrieval Record which said “[w]orking with oxy-acetylene gear and one of the bottles exploded”, should be accepted as evidence that the appellant was undertaking work for the respondent at the direction of Mr Kabaran. The Arbitrator said this submission assumed the author of the ambulance account obtained details of the explosion from the appellant. This cannot be assumed, and the report must be approached with caution. The Arbitrator contrasted the ambulance version with other accounts. The police report recorded that the appellant was in a lucid state, but could not answer questions nor explain what occurred. The investigations by SafeWork NSW do not include evidence that a bottle exploded. The report from Fire & Rescue NSW recorded Ms Liu saying the appellant had been swapping gasses. However, Ms Liu was in the kitchen of the premises at the time, and “her explanation for the explosion can only be conjecture”. The SafeWork NSW investigation concluded the Cornix CS5 Vapour Recovery Unit exploded. The appellant stated that this unit was his. The Arbitrator said he was not satisfied that what was recorded in the ambulance record allowed a conclusion that the explosion occurred when the appellant was transferring gas between bottles at the direction of Mr Kabaran.[52]
[52] Reasons, [213]–[221].
The Arbitrator noted a submission by the appellant’s senior counsel, that the appellant himself “must know exactly what happened”, but did not volunteer that information as he was induced to tell a false story by Mr Kabaran. The Arbitrator said he preferred the initial statements made to the social worker at Royal North Shore Hospital, the investigator from SafeWork NSW, the investigator on behalf of Employers Mutual and the police, that the appellant “could provide no explanation for the cause of the explosion”. The Arbitrator referred also to the police record, that the appellant, at the scene, “could not explain what had occurred”. He said this was the only record from the authorities that attended the scene that night, that recorded the appellant’s actual response when questioned about the reason for the explosion.[53]
[53] Reasons, [222]–[224].
The Arbitrator made the following factual finding:
“I am therefore not satisfied that late on the night of 20 June 2015, when an explosion occurred at … Smithfield, the [appellant] was undertaking work as a worker for the respondent or that he was using his vapour recovery unit to transfer gas from a large gas bottle to a small gas bottle. I find that the [appellant] did not sustain an injury in the course of employment with the respondent because from my review of the evidence I am not satisfied that, notwithstanding a contract of employment that was entered into between the [appellant] and respondent, the [appellant] had entered into or worked under a contract of service with the respondent during the eight months he had been in Australia pursuant to a 457 visa.”[54]
[54] Reasons, [225].

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant submits that this appeal cannot be determined ‘on the papers’. His submissions refer to issues of fact and law relating to the issue of ‘worker’, and whether the injury was one that occurred in the course of or arising out of employment. The appellant refers to “major conflicts and inconsistencies” posed by the statements of the appellant and Mr Kabaran, and the voluminous documentary evidence. The appellant submits oral argument will greatly assist. The respondent submits the appeal can be determined ‘on the papers’. The matter raises significant factual issues. On balance, I formed the view that an oral hearing was appropriate. The appeal was listed for hearing on 28 August 2019. On that date Mr Gross QC and Mr Epstein appeared for the appellant and Mr Saul appeared for the respondent.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The appeal, to a large extent, raises the factual and credit issues in the claim, and the way in which the Arbitrator dealt with these. It is necessary, to permit appropriate understanding of the issues, to set out in summary form some of the evidence in issue. This involves reference to investigations by a number of authorities, following the explosion on 20 June 2015, together with notes from hospitals where the appellant was treated. It also involves reference to statements by the appellant and Mr Kabaran, together with other lay witnesses.

RELATIVELY CONTEMPORANEOUS MATERIAL – THIRD PARTY INVESTIGATIONS

Fire & Rescue New South Wales

A report from Fire & Rescue[55] indicated that service was assigned to the incident on 20 June 2015 at 23.32, and arrived at 23.41. This service appears to have been the first emergency services at the scene, and arrived before the Ambulance Service.[56] Relevant entries in the report included:
[55] ARD, pp 163–166.
[56] Fire & Rescue report to Inspector ONeil, 16 July 2015, ARD, p 295.
“eAirs Incident Type     190 – Explosion not as a result of fire and without after-fire; insufficient information to classify further”
“Brief Description of Medical Assistance Provided              Assisted ambulance officers in treatment of patient”
“Remarks   On arrival we were confronted with a male who was suffering significant injuries and burns as a result of an explosion.
Ambulance arrived shortly after us and firefighters assisted them in treating the patient.
The area was investigated while treatment was continuing.
There was evidence of an explosion but no evidence of any further danger to Fire, Ambulance or Police personnel.
An Acetylene cylinder had suffered a fall due to the explosion.
Temperature was checked and then it was removed from the area for safety of personnel.
It was place [sic] in a drum of water in an isolated area and monitored.
A refrigerant recycling system (Cornix brand) was found to have been what had exploded. There was shrapnel strewn around the area and also embedded in the roof lining.
We were unable to determine what events led to the explosion due to the critical nature of the mans injuries.
The woman on site said he was swapping gases but could not enlighten us any further.
The male – Selim Kekic – was eventually stabilised and transported to hospital.
The owner of the business stated he was unaware of any refrigerant system on site because they were an exhaust company only.
He was advised to leave the cylinder submerged for 24hrs.
Detective– Fairfield detectives – was in charge of the investigation.”

Ambulance Service of New South Wales

The Ambulance Service Retrieval Record[57] stated the ambulance left base on 20 June 2015 at 23.50, and arrived at the patient at 00.05 (which would be on 21 June 2015). The provisional diagnosis was “Explosion trauma”. The “Clinical information Given” included:
“Working with oxy-acetylene gear & one of the bottles exploded.
Pt thrown [about] 2 m. No LOC initially.
Sustained partial L hand amputation and degloving L knee and deep laceration R lower leg.
Also all facial/head [illegible] singed.
About 500 ml of blood on floor. By time of our arrival minimal bleeding from wounds & dressings applied.”
[57] ARD, p 70.
The “Significant Investigations” included:
“On our arrival pt still trapped on ground under lifting equipment but no compression.”

NSW Police

The narrative in the Police report[58] included:
[58] ARD, pp 169–178.
“The victim, Selim KEKEC, currently has no fixed abode, however he sometimes stays with his friend and business partner, Nihat KABARAN, at … Mount Pritchard. KABARAN is the owner of Turbo Exhaust centre, located … in Smithfield. The victim sometimes also resides in the rear of this premises with his wife, Shenglan LIU. The victim works as an LED sign maker and works from … Smithfield.
About 11.30pm on Saturday the 21^st [sic] of June, 2015, the victim was in the workshop of the Turbo Exhaust centre. At the same time, LIU, was staying in the rear room of the premises. At this time, LIU heard a loud explosion and upon investigating, she discovered the victim lying on the ground of the workshop covered in blood. The victim told his wife to ‘call for help’. LIU immediately contacted a friend who called Police and ambulance to attend the location.
Upon arrival, Police found LIU in a highly distressed state. Ambulance and the fire brigade also attended the scene and upon entering the workshop area, the victim was found lying on the ground. The majority of the victim’s left hand had been severed, as well as the front knee area of his left leg. The victim had also suffered a major trauma to the lower part of his right leg. Ambulance officers immediately began to provide first aid to the victim.
Although the victim appeared to be in a lucid state, he was unable to answer any questions and could not explain what had occurred. Police and fire brigade staff inspected the scene and found large pieces of twisted metal strewn throughout the workshop. Various cables and pieces of what appeared to be a gas cylinder were also located. The windows to the premises had been shattered and Police also observed holes in the roof of the premises, all consistent with a possible explosion. The victim was subsequently conveyed to Liverpool Hospital in a critical condition.
At this time, Police recorded details of the incident, and obtained a version from LIU. In addition, Police also obtained a signed Owner Crime Scene consent form from KABARAN in order to carry out further investigations at the location. Subsequently, a crime scene was established. While being spoken to, KABARAN revealed to Police that the victim never worked on any vehicles and that he had no involvement in the automotive side of the business. In addition, KABARAN stated that he had no idea why the victim would have been in the workshop as his role is simply to create LED signs…
About 3am on 21/06/2015, Fairfield Detectives contacted Liverpool hospital and spoke to Doctor Jaminda from the resuscitation unit. Doctor Jaminda stated that although the victim had suffered major trauma, he did not present with life threatening injuries…
On 26/06/2015, Police spoke to the owner of Turbo Exhaust centre, Nick KABARAN, who stated that when he returned to his workshop following the crime scene examination, he observed numerous pieces of metal laid out on a blue drape that had been left by crime scene. Mr KABARAN asked the general duties staff what he was to do with these items and he was told that he could throw them out if he liked. As a result, Mr KABARAN placed all these items in the bin.
The following day, Meaghan ONeil, from Workcover attended the location and spoke to Mr KABARAN in relation to the incident. She asked him what had exploded, to which he replied ‘I don’t know’. When questioned further, Mr KABARAN stated that all fragments had been placed in the trash. Upon request of Ms ONeil, Mr KABARAN removed the items he could find in the trash and left them on the floor of the workshop where they currently remain.
…Ms ONeil also informed Police that she has arranged for a gas cylinder expert to attend the location in the coming days to inspect the remaining fragments. As such, the fragments will remain in situ until the inspection is complete.
About 0900 on 26/06/2015, Police contacted the Royal North Shore hospital…The OIC spoke with Dr RAMESH who stated that the victim was expected to survive but that at this stage he was currently in an induced coma. Dr RAMESH stated that the victim would be undergoing extensive surgery today and tomorrow and that they were hoping to wake him from his coma on Sunday 28/06/2015.
Police will attempt to attend the hospital sometime after this date in order to interview the victim in relation to his actions prior to the explosion in an attempt to ascertain the cause of the incident. On 15/07/2015 Police spoke with the burns unit at the Royal North Shore Hospital, who advised that Selim KEKEC would be discharged from hospital at the end of this week. KEKEC advised that he would be staying with Nihat KABARAN at … Mt Pritchard. Police will follow up in the coming weeks in order to obtain a statement from him in relation to the incident. Early conversations with him, have indicated that all he can remember prior to the explosion is that he was preparing his fishing gear for a fishing trip scheduled for that night. At this stage, Police believe that no offence has been committed and the matter is being investigated by work cover. However, Police will still need to obtain his statement before the matter can be finalised.
About 2:20pm on 20/08/2015, Selim KEKEC attended Fairfield Police station and provided Police with an audio statement in relation to what occurred. Police recorded this statement with the use of a digital hand held recorder and also utilised the services of a telephone Turkish interpreter (Job number 150804137).
KEKEC stated that on the night of the incident, he was working until late in his factory making electronic neon signs, while his wife was in the kitchen cleaning some dishes. KEKEC stated that the factory where he was working, located at … Smithfield is divided into 2 sections. One section contains the car exhaust centre where his friend Nihat KABARAN works and the rear of the premises contains the work area where he manufactures his neon signs.
KEKEC stated that at about midnight he wanted to go to the toilet, which is located in the section of the factory that houses the car exhaust work shop. KEKEC claims that he walked into this section of the factory and used the bathroom. He stated that all of the lights were turned off at the time and as such he could not see much. After finishing in the bathroom, KEKEC stated that he began walking back to his side of the factory and as he did so, he remembers a loud explosion. Following this, KEKEC said that the next thing he remembered was waking up in the hospital.
When questioned further, KEKEC could not provide any further information in relation to the incident and stated that he has no idea what caused the explosion.”

SafeWork NSW

The material from SafeWork NSW (also described as Workcover in some places) included an Incident Notification Report,[59] with a “Description of Event” that stated:
“IP was in the workshop area. It is not clear what he was doing given the time. His girlfriend who lives with him on the premises heard an explosion and went to see what had happened and found the IP on the ground suffering severe injuries to his hand and legs. The girlfriend has then called a friend who has contacted emergency services. Police, ambulance and Fire have attended and commenced life saving protocols. Crime scene also attended and conducted full investigation. FRNSW via 7918 Mick Hughes advised at 12.20 am and advised a small refrigerant acetylene cylinder has been submerged to prevent further incident.”
[59] ARD, p 181.
The injured person’s “Relationship to notifier” was described as “Worker”. The material included part of an “Inspector notebook” issued to Inspector M ONeil.[60] It contained handwritten notes relating to a visit to Turbo Exhaust Centre on 22 June 2015. It stated the inspector did not enter the building and spoke to the Police instead. It described contact with Mr Kabaran on 22 June 2015 (signed off at “3.50”). These notes included:
“IP Selim Kekec. Possible gas cylinder explosion c. 1130pm Sat 20/6/15.
2 business – Turbo Exhaust other is sign maker – not fully set up yet (eg apns [?]) Signs is Nihat & IP.
Police showed debris – not sure what most was but maybe one piece from oxy bottle (guage)
Bottles are swap go Mitre 10 Victoria St Smithfield.
C 10am this morning returned bottle present at T10 (paired in guage in bin) as incompatible (ie twin) connectors.
Had picked up thurs or Friday last week. Oxy.
Police had advices Nihat he could remove incident debris & dispose of. Nihat threw debris in skip bin. It was still located here at time of inspection.
I directed Nihat Kabaran to remove the debris involved in the incident from the skip bin and keep in a secure location, awaiting further instruction from workcover.”[61]
[60] ARD, pp 209–238.
[61] ARD, pp 212–214.
The handwritten material in the notebook contained the following:
“IP has keys to premises. Not sure what he was doing at the place at night but he might have been working on a LED sign in the back room of the premises (where the sign making business is being set up. IP’s wife was here with him at the time. Nihat states he was not here at the time. The IP and his wife are living with Nihat at the moment.
Nihat has no idea why the IP was in the actual workshop as he has nothing to do with the automotive side of the business.
Nihat claims to also have no idea what could have exploded in the workshop. The debris looks like something metal exploded but all of the gas bottles seem to be still here.
Nihat says he took an oxy bottle back to Mitre 10 W/Park this morning because he got it on Thurs and it had the wrong fitting. That bottle was present in W/shop at time of the explosion. I advised I would go directly to Mitre 10 to make sure the bottle gets tested before being hired out again as it could be damaged.[62]
[62] ARD, pp 215–216.

The above entry is not separately dated, but it is followed in the notebook by an entry dated “22/6/15” and marked “4.25”. That entry deals with a visit to Mitre 10, Smithfield, to advise “that an oxy bottle that had been in the vicinity of the explosion had been brought back to Mitre 10 as a swap/go this morning. Advised it may have sustained internal damage from the blast and needs to be pulled out of circulation immediately”.[63]
[63] ARD, pp 217–218.
These are followed by an entry dated 2 July 2015, which described, in the company of State Inspector Steve Robins, inspecting and photographing debris collected from the scene of the explosion. That entry continued:
“Made enquiries about whether Turbo Exhaust undertakes any re-gassing. Nihat stated business is only exhaust and doesn’t do any regassing. Asked if Nihat has any regassing equipment. He stated No. Asked if Nihat knew what any of the items from the bin (box of debris) were. He stated No had not seen any of the things before.
Made enquiries to state of IP. Nihat advised he had opened eyes, was conscious, but didn’t make any sense. Just keeps saying he wants to go fishing.”[64]
[64] ARD, p 220.
The notebook referred to informing Mr Kabaran that WorkSafe NSW would take possession of the box of items. The narrative continued:
“Off premises, had discussions with Insp Robins re the type of debris recovered.
Pieces present would be consistent with parts of a vapour recovery unit which is used to re-gas automotive air conditioning systems. Comprising a compressor, separator & heat exchanger. Some units designed to take flammable gasses but some must use NON-flammable gas if a non-flam unit was hooked up to flam gas a spark could cause ignition/explosion. If system inadvertently hooked up in a closed loop could also be pressure issue.
PCBU claims to do exhaust only work so vapour recovery unit wouldn’t be part of that work.
Need research CORNIX brand units to determine what sort of gas they can handle.”[65] (emphasis in original)
[65] ARD, pp 221–222.
Entries then dealt with the taking possession, storage and inspection of the items from the explosion site. There was an inspection of the evidence taken from the accident site, on 6 July 2015.[66] It involved inspection by “Specialist Services”.[67] The items inspected included a pressure vessel that was described as the likely seat of a “pressure explosion”. The items inspected were assembled inside housing that was labelled “Cornix Refrigerant Recycling Systems”. The entry said that a report would be prepared.[68] There was then an entry dated 6 August 2015 at 10.40, dealing with an interview with the appellant. Beneath the appellant’s details, the words “– Int Services” appeared. The notebook recorded details of the appellant’s injuries and treatment. Relevant to the appellant’s working arrangements and the circumstances of the injury, the following was set out:
[66] ARD, pp 225–227.
[67] See ARD, p 192
[68] ARD, pp 223–227.
“Been in Australia for 9 months. In Sydney all that time.
Have known Nihat (Nick) for about 2 years. Nihat was my sponsor. Met Nick when here as tourist.
Selling electronic parts & came to Australia to meet his clients.
Have own company in China supplying various things.
Profession is electronics – programming etc.
Small office at back of turbo premises where set up to run business in making LED signs – custom jobs.
Had started the business and sold some. Still setting up most of the business.
Part of sponsorship has to be employed by Nihat at the premises.
Selim doesn’t understand about Nick’s business. Doesn’t do any of the car things Sign work take up all the time.
Nick obliged to assist Selim re govt, legal, wok [sic], etc.
Selim has own health insurance.
Manufacture and install signs – Nick and his people sometimes help if heavy
Was at the workplace on the Saturday night because I needed to complete some orders I just work whenever there is work.
Arrived about 2–3 pm on the day. To complete some orders & get fishing gear ready for next day.
I get inside with my keys.
I came in through office door. Nick was still there until about 8 pm. About 1-1½ hours after Nick left I was finishing an order. Then organise fishing. I was working in my office.
About 10 pm finish sign then make tea in kitchen All fishing gear is on Nick’s side in kitchen workshop lights on so go turn off then go to toilet. Finished in toilet & walked back into the workshop. This is the last thing I recall. My wife was in the kitchen at the time.
Emergency services arrived & worked for approx. 1 hr to stabilize. To Liverpool Hospital then later to RNS.
At that time Roller door likely to be closed.
Turbo usually close door about 5.30 pm.
Didn’t notice any strange smells in the workshop when went to go to toilet.
I don’t recall if I was having a cigarette.
Doctors say injuries not from burns just blast injuries. Not sure how face got burns.[69]
[69] ARD, pp 229–234.
The document described the appellant being shown “brochure with Vapour Recovery Unit + Photo 5 [remnant of Vapour Recovery Unit]”[70], following which the notebook recorded the following from the appellant:
“I don’t know what that is. I don’t recall seeing anything like this before.
Explained what Vapour Recovery Unit does.
Says Nick never does air conditioning. I don’t know anything about this machine. I would have seen it before if it was kept at the workshop.
Show photo 2[71] [oxy bottle attached to hose]
[70] ARD, pp 246 and 284.
[71] ARD, p 243.
[72] ARD, pp 235–236.
Looks like the kind of thing they use in the workshop. They always need to do welding. I never touch these things I don’t need to do any welding. My frames are all click together type.”[72]
The SafeWork NSW investigation file included copies of some emails from Constable Arteaga to Ms ONeil dated 15 July 2015.[73] The earliest, at 11:52 am said in part:
“I will arrange an appointment with him in the coming weeks at his home with an interpreter in order to try to get a version from him although initial conversations indicate that all he can remember is that he was getting his fishing gear ready to go fishing that night and the next thing he remembers is an explosion.”
[73] ARD, pp 290–292.
The later email at 2:45 pm on the same date said in part:
“On the night of the incident an initial search by Police did find fishing gear stacked up against the wall in the back room, but there was nothing in the actual work shop where the explosion happened. Hopefully when I speak to KEKEC formally in the coming weeks, he’ll be able to clarify exactly what happened.”
There is a “Briefing for the Investigation Decision Making Panel” dated 10 August 2015.[74] It is signed off by Ms ONeil, her Team Manager and her Team Coordinator. The “Key reasons” in the document include the following:
“There were no witnesses to the incident.
Both the business owner – Nihat Kabaran – and injured person, claim to have no knowledge of the Vapour Recovery Unit or what it was doing on the premises at the time of the incident.
…
WorkCover’s Engineering Team can only advise in line with the physical evidence in custody. They were able to determine that the plant that exploded was a Conix CS5 Vapour Recovery Unit, but can only summise based on the physical condition of the compressor housing inside the unit that the compressor is the likely point of origin of the explosion. The precise circumstances that would cause the compressor to explode could not be pinpointed from the physical evidence.
The injured person claims that he was not undertaking [?] work in the vicinity of the explosion at the time. He states that he was working in another area of the premises and that at approximately 11.30 pm he entered the workshop area of the premises to go to the bathroom which was only accessible via the workshop. He went to the bathroom and re-entered the workshop area. After taking a couple of steps he was thrown to the ground by an explosion. Mr Kekec is a smoker but cannot recall whether he was smoking at the time he walked out of the bathroom.
Whilst Mr Kekec’s injuries would indicate that he was very close to the Vapour Recovery Unit at the moment it exploded he claims to have no knowledge of the unit and that he was not using the unit at the time that it exploded. There were no direct witnesses to the incident.
The physical evidence available in this matter does not give any indication as to the cause of the explosion.”
[74] ARD, pp 305–307.

Liverpool Hospital

The notes from Liverpool Hospital, to which the appellant was initially admitted, reveal the Glasgow Coma Score was “11/15 on scene”.[75] A note on 21 June 2015 includes:
“Blast injury
-    Blast from cylinder – welding?
-    unclear as to what service he was providing
-    oxy-acetylene cylinder found.
-    thrown back 2 m.”[76]
[75] ARD, p 92.
[76] ARD, p 103.

Royal North Shore Hospital

The appellant was transferred to Royal North Shore Hospital (RNSH) on 22 June 2015 at about 10.30 am.[77] As at 5.30 pm that day nursing notes recorded the appellant was sedated with Propofol and Fentanyl, had a Glasgow Coma Scale of 10/15, and was “rousing easily, obeying commands, moving limbs with severe weakness … nodding yes to pain + grimacing ++”. They also recorded he was “visited by wife and friends”.[78] Clinical notes confirm the appellant was visited by his wife, Ms Liu (referred to as “Amy” in the notes) on 23 June 2015, 24 June 2015, and 25 June 2015[79] and by friends on 24 June 2015.[80] On 26 June 2015 the appellant was still described as “deeply sedated”.[81] The notes on 28 June 2015 recorded the appellant was “extubated [about] lunchtime today”, although at 15:10 was “not following commences [sic, commands] consistently, ? doesn’t understand”. By 16:25 the notes recorded that the appellant was “Extubated successfully”, and obeying commands in Turkish.[82] On the morning of 29 June 2015 the appellant was “visited by wife Amy”. On 30 June 2015 “Visitors X 5 arrived + wife”. On the evening of 30 June 2015 the appellant was having difficulty holding his eyes open, did not know the month, year or day, or where he was.[83]
[77] Reply, pp 45–46, 55.
[78] Reply, pp 56–56.
[79] Reply, pp 70, 76–77, 87.
[80] Reply, pp 70, 77.
[81] Reply, p 89.
[82] Reply, pp 104–105.
[83] Reply, p 124.
An entry in the clinical notes on 1 July 2015 recorded:
“Selim seen [with] wife
initially reported English as ‘ok’
however became clear on further questioning that interpreter required
will arrange interpreter when return to ward.”[84]
[84] Reply, p 132.
On 3 July 2015 it was recorded the appellant was “alert and orientated at times but can become confused and disorientated”. [85]
[85] Reply, p 145.
The notes recorded a meeting between Ms Washington, a senior social worker, and Ms Liu on 24 June 2015.[86] The notes recorded Ms Liu telling Ms Washington, of the appellant and herself:
“They’ve been living + working together in China for the last 5 years.
·     Amy said they moved to Australia on the 28^th Feb. Selim has a work visa and Amy came with Selim on his visa. In China Selim worked as an electrician + making LED signs. Amy said he has been doing electrical work here though she is not sure who his employer is. Amy wasn’t sure whether Selim was working when he was injured – she was at the scene although in another room sleeping when she heard the explosion. Amy understands it occurred at a friend’s business. Amy is not working.
·     Amy said they live with friends in Mt Pritchard.
…
·     She is anxious for Selim to wake up so she can ask him questions. She also wants to be here for him to provide support when he wakes up.”
[86] Reply, pp 79–80.
On 5 July 2015 the notes recorded a consultation with Ms Hunter, an occupational therapist.[87] The recorded history included:
“Pt recalled able to recall speaking [with] friend on telephone re: going fishing, then hearing a loud bang. Pt reported unable to recall any events between this and waking up in hospital.
Pt reported is originally from Turkey – (first and preferred language is Turkish) however usually lives in China. Pt has been in Australia for about 1.5 years for business (export/import of electronics) (OT aware information differs from that provided by wife to SW on 24/06/15). PTA explained to patient. Pt agreeable to participate – declined Turkish interpreter. Pt c/o [reduced] hearing following the explosion. Pt reported able to understand O/T when OT speaks slowly and with [increased] volume close to patient’s ear.”
[87] Reply, p 151.
On 7 July 2015 there was an “automatic referral of burns Pt”, with the clinical notes recording a consultation with Ms Leader, a social worker.[88] The notes from this consultation assumed some significance in the running of the matter and in the Arbitrator’s reasons. The record of that consultation is set out below in its entirety:
“Background: Pt is a 42 y.o. man admitted following a ? explosion resulting in [fracture] to [right] tibia and [left] patella and partial amputation of 4 & 5^th digits of [left] hand, flash burns to face. S.W. entry 24/6/15 noted.
Assessment: S.W. had introduced self to pt when interpreter present earlier. Interpreter relayed that Pt felt comfortable talking in English as long as speech was slowed. Pt gave the following information (without interpreter). He is a businessman on a Business visa (357) [sic, 457]. He has medical insurance, organised prior to arrival & which is deducted from his visa card monthly. He runs his own import/export company. Imports from China, sells both retail and wholesale with some goods being customised by him. He rents space in a factory (other part of factory is rented by a friend who runs an exhaust business). He arrived in Australia late last year (had had several short visits to set up his business prior) on his business visa and brought his wife out 2 months ago. They have been together 5-6 years & married one year. No children. She is 31 y.o. On the night of the accident he says he was in his office in the factory. He says he was preparing his fishing tackle, his wife in the adjoining kitchen when he heard ‘bang’ – then remembers nothing after that. He says he does not know what caused the accident & neither does his friend.
Pt is concerned about his wife while he is in hospital as he says she does not know her way around & cannot drive. Currently she is staying with his Turkish friends who are bringing her in every 2 days. He is expecting her in tomorrow afternoon. He says he has no phone to contact her & she doesn’t have a phone either. He is not concerned about her financial situation as he says they have enough cash to survive and his friends will help out. He is concerned about his business as he currently has a contained load of goods which arrived 3 days before the accident. Pt is also concerned about his injuries. He says that Drs speak too fast for him and he doesn’t understand what they say.
Plan: S.W. to visit regularly for support. Will also speak with wife when she visits tomorrow. Pt says he can find out his insurance provider & will attempt to do so when wife and friends visit.
Addit: Phoned Const Gary Arteaga from Fairfield police (ph. 97288399) re incident. Const not in. Will ring tomorrow when back on duty.”
[88] Reply, pp 160–162.
Ms Leader recorded that she saw the appellant with his wife on 9 July 2015. There was discussion about his “insurance card”. The entry continued:
“Pt and wife discussed business in China. Pt makes custom made electronic items such as neon signs. Wife was working with him in sales. He is concerned about his business whilst he is in hospital but is aware that he has to be patient. He maintains that he was working on his tackle box when accident occurred & not working on any equipment. Aware police will come to visit him next week.”

The insurer’s investigator

The factual investigation arranged by Employers Mutual included statements from the appellant and Mr Kabaran, dated 24 July 2015 and 31 July 2015 respectively.

The appellant’s statement

The appellant’s statement to the investigator said that he settled in Australia in September 2014, before which he lived in China, “involved in electronics import and export”. It said that since coming to Australia the appellant was “involved in custom making LED electronic lighting for advertising signs”. It said he had known Mr Kabaran from a visit to Australia “a couple of years ago”. Mr Kabaran asked him about “getting material associated with his exhaust repair business from China”.[89]
[89] Appellant’s statement 24/7/15, [9]–[11], Reply, p 253.
The appellant said that when he decided to come to Australia, he asked Mr Kabaran “to be a sponsor for me”. He said the visa “took a few months to be processed”. When it was approved he came to Australia, and he and Mr Kabaran “started an LED business”. The appellant stated that he organised the delivery of two containers of LED components from China. He said the arrangement with Mr Kabaran was verbal. The appellant was to provide the labour, Mr Kabaran would supply funds and capital, the cost of electricity and rent, the cost of materials would be deducted, and the profits would be split fifty/fifty. The appellant said it was “an informal agreement between friends”, it was not “formalized”, there were “no actual figures agreed”. The appellant said that he moved into an area of the workshop from which the respondent operated. An area was emptied out, and a “little workshop area was created” for the appellant. The appellant had a key and came and went as he pleased. It was not uncommon for him “to use the workshop after hours”. The appellant said the LED business was the only work he did; he was not allowed to do other work under the terms of his visa.[90]
[90] Appellant’s statement 24/7/15, [12]–[17], Reply, p 254.
The appellant stated that installation of the LED signs on site was “a two person job”, and Mr Kabaran came out to assist him, on average one to three times per week. Mr Kabaran was “not involved in the manufacturing side”. The appellant described the business as “profitable”, but said that all the money “was reinvested into the business”. The appellant said he drew funds for living expenses, “not a set amount but a record was kept”. He said that under his visa condition he was employed by the respondent earning $8,000 per month, but this was “never actually paid in reality”. He said he had no involvement in, or knowledge of, Mr Kabaran’s “exhaust business”.[91]
[91] Appellant’s statement 24/7/15, [18]–[20], Reply, pp 254–255.
The appellant stated that on 20 June 2015 he and Mr Kabaran were both at the workshop. Mr Kabaran left at about 8 pm. The appellant had “plans to go fishing the next day and [he] was getting [his] fishing gear together after [he] finished [his] work”. He then went to the toilet, and as he came out he turned off the light, and “moments later heard a massive explosion”. He stated this was the last he recalled, he “regained consciousness about nine days later” in RNSH. He said he had “no idea whatsoever as to what caused the explosion or what exploded”. He said the explosion was in the exhaust workshop area, which he came into when exiting the toilet. Otherwise he would not have been in that area. He said the only thing he did in that area was “to assemble [his] fishing gear for the next morning because the light is better in that area”. He said his wife was in a different area, and had “no idea of what happened”.[92]
[92] Appellant’s statement 24/7/15, [21]–[27], Reply, p 255.
The appellant stated that the LED sign business was called “Turbo Centre”, and there were business cards in that name. The contact number and address was that of the respondent. There was no ABN or formal business entity.[93]
[93] Appellant’s statement 24/7/15, [29], Reply, p 256.

Mr Kabaran’s statement

Mr Kabaran, in his statement to the investigators dated 31 July 2015, described the appellant as “a family friend”. He said the appellant “has never worked, been employed by or in any [way] remunerated by Turbo Exhaust”. The appellant had been attempting to start up an LED sign business. Mr Kabaran “agreed to let him use part of the premises out of which Turbo Exhausts operates”. He said he allowed the appellant to use “a back room entirely separated from our workshop”. The appellant did not pay rent. There was a verbal agreement that, if the business started making money, Mr Kabaran “may then have some involvement in the business”. He said the appellant had not worked, or helped out, in the business of Turbo Exhaust. “He only attends the premises to pursue his LED business.” The appellant did not use the tools and equipment of Turbo Exhaust. The appellant had his own keys, “[h]e comes and goes as he pleases”.[94]
[94] Kabaran statement 31/7/15, [10]–[14], Reply, p 260.

There is no developed submission by the appellant, drawn from the Migration Act and Regulations, to the effect that it was not legally possible for a contract of employment, like that in the current matter, associated with the issue of a 457 visa, to be ended. There were matters that pointed in a contrary direction. The employment contract was submitted to the Department in support of the application for a visa for the appellant, which was then issued. The contract itself clearly envisaged it could be ended by the parties. There was provision in cll 33 to 37 for termination of employment. The employer could dismiss the employee without notice if the employee breached a material term or engaged in gross misconduct. Either party could terminate the employment by giving appropriate notice, described in cll 35 to 37. The Visa Grant Notice, issued to the appellant by the Department, advised the appellant what his options were if he stopped working for the respondent (see [365] above). It may be that other consequences would potentially flow if there was breach by a party or parties of their sponsorship obligations, although this is not clearly spelled out in the submissions. I do not accept the appellant’s argument, made in general terms in subparagraph (c) of Ground No. 16, that the respondent could not lawfully opt out of the employment contract (see [361] above).
Subparagraph (d) of Ground No. 16 asserts the Arbitrator did not consider and take fully into account cl 4 of the employment contract, which provided that “the employee will agree to reasonable changes in the employee’s duties”. The Arbitrator rejected the appellant’s later statements, from 22 June 2017 and subsequently, and accepted Mr Kabaran’s evidence that the appellant’s “LED signs” business was the business of the appellant alone (see [358] above). The Arbitrator specifically dealt with the issue of whether the appellant’s “LED signs” business had become part of the business of the respondent, and concluded that it had not (see [354] above). It followed that the work of the appellant in the “LED signs” did not constitute reasonable change in the appellant’s duties. Rather, it was an activity of the appellant that was not for the benefit of the respondent or Mr Kabaran, that represented the activities of the appellant, in developing his own business. The evidence which the Arbitrator accepted supported this conclusion. For the reasons given above dealing with the balance of the grounds numbered 13 to 17, and these further reasons, the argument made in respect of subparagraph (d) of Ground No. 16 fails. Ground no. 16 fails.
Ground No. 18 asserts the Arbitrator erred in placing excessive reliance on the fact that the appellant did not provide invoices between October 2014 and 20 June 2015. It refers to the following finding by the Arbitrator, in his reasons at [195]:
“The failure by the [appellant] to provide particulars of the many other invoices that were provided between October 2014 and 20 June 2015, his bank account from China, or the goods or items he claims to have imported at the direction of the respondent between October 2014 and 20 June 2015, are further reasons for me not to be satisfied that the [appellant] was working under a contract of service for the respondent.”
The appellant submits the invoices referred to in the above passage were “sent in the respondent’s name”. He submits “whether or not the [appellant] could provide all copies of all invoices in respect of the importing work he performed for the Respondent is not relevant to the issue of whether he was a worker or not”.[404] The respondent submits the appellant provided this evidence, and both the appellant and the respondent gave evidence about it. The respondent submits the Arbitrator did not place excessive reliance on the invoices. He simply thought they were not indicative of an employment relationship at the time of the accident. The respondent submits the finding was in any event ancillary, and immaterial to the ultimate findings.[405]
[404] Appellant’s submissions, [18.1]–[18.3].
[405] Respondent’s submissions, [84]–[86].
In a case where there was little common ground between the appellant and Mr Kabaran, evidence of the invoices associated with goods imported into Australia, by or with the assistance of the appellant, had the capacity to provide corroborative evidence of the appellant’s work as an Importer/Exporter. The appellant addressed the Arbitrator on this basis.[406]
[406] T1 43.4–44.15.
The Arbitrator considered the invoices, in the reasons at [192] to [194]. The Arbitrator reasoned that the appellant would likely have been able to access material dealing with such transactions on his computer. He also said there was no complaint from the appellant that he was unable to access material on any computer in the respondent’s possession, that could have evidenced transactions between October 2014 and the date of the explosion. He also noted the appellant had not adduced evidence from his bank account in China, through which money was said to have been forwarded to pay for invoices. The Arbitrator dealt with the documentation, and concluded that there were no invoices from when the appellant came to Australia to live in October 2014, until the explosion occurred on 20 June 2015. This was notwithstanding his assertion that there were “many others”. The factual correctness of this conclusion is not challenged on this appeal. The inference drawn by the Arbitrator, regarding the appellant using his own computer for “any import work being undertaken”, also is not challenged. The Arbitrator further noted the appellant had “not provided any particulars of what goods or items he claims were imported by him at the direction of the respondent between October 2014 and 20 June 2015”.
When read in context, it is apparent that the passage in the reasons at [195] related to the failure by the appellant to adduce corroborative evidence of these alleged transactions, in circumstances where it could reasonably be inferred that it was within his capacity to do so. The finding in the reasons at [195] is not appropriately trivialised as a finding on “whether or not the appellant could provide all copies of all invoices”. The finding at [196] of the reasons was essentially a finding that the appellant had not discharged his onus on this issue:
“I am therefore not convinced that the [appellant] was working under a contract of service for the respondent in regard to any import/export work notwithstanding that there exists a contract of employment which states that the respondent employs the [appellant] as an ‘Importer/Exporter.’”
Ground No. 18 fails.

GROUND NO. 19

Ground No. 19 reads:
“The Arbitrator erred on the facts in failing to conclude that on the balance of probabilities:
(a)    the appellant at the time when the explosion occurred was doing work which the respondent (through Mr Kabaran) required or authorised or expected the appellant to perform in the section of the factory where the respondent conducted its vehicle exhaust business;
(b)    at the time of the explosion, the appellant, regardless of what he did at other times and places, was in fact doing work on gas transfer for the purpose of the respondent’s business, and doing that work as the respondent’s employee;
(c)    the injury to the appellant arose in the course of his employment with the respondent;
(d)    the injury arose out of the employment with the respondent.”
The appellant makes no additional submissions in respect of this ground, stating “ground 19 is conclusory”.[407]
[407] Appellant’s submissions, [19.1].
For reasons given above in respect of the other grounds, Ground No. 19 fails.

DECISION

The multiple grounds relied upon by the appellant have failed.
The Arbitrator’s determination dated 5 February 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

22 October 2019